The kids - they're mine and yours
Marius Janse van Rensburg
The kids - they're mine and yours
By Marie Opperman
Reproduced with permission of YOU magazine -
8 March 2007.
www.you.co.za
LATE one night a man’s telephone rings.
It’s his ex-wife, the mother of his teenage daughter.
‘‘Sue wants to sleep over at Paul’s place – they went out to a movie together this evening,’’ she says, “but I don’t think it’s a good idea. Do you?’’
He thinks for a moment.
‘‘I think you’re right. It would be better for you to fetch her. Or, wait a moment, I’ll go.’’
For some divorced folk this conversation is so unlikely it may sound like a fairytale.
But there are many divorced couples who do communicate about the comings and goings of their kids like any other parents.
If this is not the case with you and your ex it’s high time you got your affairs in order. That’s the advice from not just psychologists and social workers but divorce lawyers too.
In the new Children’s Bill now in the process of being passed by Parliament joint responsibility is strongly en-couraged – according to the Bill the courts would rather give parents joint custody of children than award custody to one parent alone.
This simply means both parents must be legally involved in their children’s lives and make joint decisions about important issues such as religion, education and health.
If one parent doesn’t do this he or she will be contravening a court order and can be prosecuted.
This won’t be a hassle for divorced parents who get on well. It prevents one parent being overloaded with all the responsibility of raising kids while the other one wriggles out of everything.
But then there are former couples who spit fire at the mere thought of each other.
Fortunately the law has made special provision for these people so joint custody can work for even the most estranged couples.
JOINT custody is preferable even if the parents do not get on well, Gauteng child psychologist Anne-Marie Rencken-wentzel says.
Cape Town attorney Maggie Kidd-Visser agrees.
‘‘It’s in the child’s best interests,’’ she says. ‘‘Unfortunately it often happens that the parent who doesn’t have custody of the child withdraws completely. With joint custody parents will not be able to do this.’’
The premise of the Children’s Bill is that the divorced couple are the joint parents of the child, senior family advocate Chris Maree of Pretoria says.
‘‘In the past the legal system awarded mainly the divorced woman custody of the children,’’ he says. ‘‘Joint custody has become more popular – in part because divorced fathers want to be involved in big decisions in their children’s lives and because according to the Constitution we’re all equal.’’
But this doesn’t mean all parents will automatically get joint custody. ‘‘The family advocate still has to make a recommendation as to whether it’s in the child’s best interests.’’
Maggie explains, ‘‘In all divorces the family advocate has to put his or her stamp of approval on the children’s care arrangements. This will help the court reach a decision if the parents can’t agree.’’
Mariëtte van der Merwe, a Cape Town social worker with a doctorate in social work, says even parents who both choose joint custody have to prove there’s no bitter conflict between them. In such cases it can be useful to talk to people who know the family.
‘‘Parents must understand children are not possessions that have to be divided,’’ she says. ‘‘Parents must look at their roles creatively and realistically. I don’t usually recommend joint custody where there’s a lot of conflict. I look at things such as the former partners’ ability to solve problems, how constructively they can communicate with each other, if their relationship is neutral rather than hostile, how emotionally mature they are and how well they can work together.’’
Martin Vermaak, a Randburg attorney, says joint custody is a better option if the parents are communicating. ‘‘An arrangement is usually drawn up with a proviso that a mediator be appointed when the parents can’t reach agreement about something.
‘‘A mediator could be an advocate, attorney, psychologist or social worker.’’
When parents argue about joint decisions or if one objects to joint custody it could take longer and be more expensive to get divorced because a family advocate then has to intervene.
‘‘The family advocate can appoint a team of professionals such as psychologists and social workers to investigate the case and make recommendations,’’ Chris says. ‘‘They will look at things such as which parent the child is closer to and economic circumstances.’’
Martin explains, ‘‘The way the family advocate investigates the case depends on what allegations the parents make against each other in court documents. If one parent is accused of drug abuse, for example, the family advocate will investigate thoroughly.
If necessary he will get reports from social workers or psychologists at state expense.
‘‘The offices of family advocates are swamped with requests to investigate custody and access. This puts a lot of pressure on these offices – which is why some parents prefer to get reports drawn up for the family advocate at their own cost.’’
But such investigations can cost thousands of rands, especially if specialised psychological tests have to be carried out, Mariëtte warns.
She recommends that parents who communicate well should talk to a social worker or psychologist before they get divorced to hear what options are available.
‘‘If they don’t succeed in having a joint discussion with a professional of this sort then perhaps joint custody is not for them. Divorce counselling could then help them work through unresolved emotions to reach what we call a neutral relationship.’’
In the past it seemed the courts were often hesitant to grant joint custody because parents sometimes returned to court repeatedly to thrash out some aspect of the kids’ lives they couldn’t agree on.
If the essence of the divorce order has to be changed, such as when a parent wants to change from joint custody to sole custody, the case goes to the High Court – which can be expensive. ‘‘That’s why it’s important to make the right decision at the start,’’ Mariëtte says.
CHILDREN can also have a say in decisions affecting their future, according to the United Nations and the Africa Foundation for Child Rights. ‘‘A child must have a voice,” Chris says. ‘‘We will even speak to a child of two if we can. We will ascertain his or her level of emotional development and determine whether the court can take his or her opinion into consideration.’’
Child psychologists and social workers won’t ask the children direct questions such as, ‘‘Who do you want to live with?’’ but determine what’s best for the child by using special techniques such as games.
‘‘An older child’s wishes can be the determining factor but various other factors are also taken into consideration,’’ Mariëtte says. The child’s best interests are the most important consideration.
Anne-Marie often draws up reports on families to present to the divorce court. ‘‘I evaluate the whole family and talk to teachers and grandparents,’’ she says. ‘‘In this way I help with decisions that are in the interests of the children and, in the case of joint custody, how the two households can be synchronised.’’
Both parents’ homes are usually visited. ‘‘Although joint custody is not a 50/50 situation both homes have to be turned into a safe haven for the children,’’ Anne-Marie says.
‘‘Joint custody doesn’t necessarily mean the children spend equal time in both homes,’’ Mariette says. ‘‘It’s preferable for one parent to provide the primary accommodation.’’
Anne-Marie also recommends to the court how the parents can cooperate. It’s important to be flexible, she says.
‘‘For instance I take both parents’ strengths into consideration. Perhaps the father could have the final say when it comes to education and keep the mother informed, and the mother could look after medical matters.
“How much time each parent spends with their children depends on their personalities and ages, as well as the parents’ personalities and work circumstances.’’
Her advice to parents is, ‘‘Listen to your children’s needs. And make a distinction between marital conflict and parental conflict. Much of the conflict in the divorce courts is due to unresolved marriage problems and not about the children. Even though you’re no longer partners in marriage you can still work together as parents.’’
The results of the consultation between the state and the parents are included in a parenthood plan. It includes practical decisions about the children’s care such as who they’ll be with on birthdays and during holidays. It’s also usually stated parents with joint custody must live within a certain geographical area so they’re not too far from each other.
But Maggie believes joint custody can work even when parents live far away from each other. ‘‘They can make arrangements concerning the kids telephonically.’’
If parents want to change the plan decided in court at a later stage they can approach the family advocate for reconsideration. This could happen when one parent leaves to live overseas, for example.
As with single-parent custody, maintenance is still determined by the parents’ respective incomes and costs. ‘‘The parent with whom the children stay with least often has to make the biggest financial contribution. The parents’ contributions are worked out pro rata according to their incomes and costs.’’
Maggie says it’s becoming increasingly common for children to live with their father.
‘‘This doesn’t mean their mother is a bad parent. Factors such as the mother’s work circumstances and where she lives play a role. For instance if the mother moves out of the neighbourhood where the children’s schools and friends are and the father still lives there it makes sense for the children to live with him.’’
Martin’s advice to parents is, ‘‘For joint custody to work it’s preferable for the rules not to be too inflexible.
‘‘Parents must arrange the care of their children to fit their circumstances.’’
It all comes down to one thing – you and your ex have to talk to each other.
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